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Judge delivers mixed opinion in fall protection case against roofing contractor

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An administrative law judge of the Occupational Safety and Health Review Commission affirmed in part and vacated in part citations against a residential roofing contractor who claimed the citations were issued with vindictive motivation and with an improperly executed warrant.

Two compliance safety and health officers of the U.S. Occupational Safety and Health Administration observed employees of Papillion, Nebraska-based Elite Builders Inc. working on residential projects in Omaha, Nebraska, without the use of proper fall protection equipment on separate occasions during the summer of 2015.

During the first inspection, owner Mark Bratetic indicated that his employees were uncomfortable using harnesses and tether lines because they presented a tripping hazard and that other conventional fall protection systems were either infeasible or presented a greater hazard. OSHA issued two serious citations following the inspection with associated penalties of $5,600, according to documents in Secretary of Labor v. Elite Builders Inc.

During the second inspection, Mr. Bratetic would not provide additional information, refused entry to the site and told the inspector to get a warrant. The investigator obtained a warrant and returned to the worksite to complete his inspection, although the employees by then had completed work on the site. OSHA issued four serious and two repeat citations with associated penalties of $20,800 resulting from the second inspection, commission records show.

The repeat citations were later modified to serious violations and proposed penalties were reduced to $16,800, according to commission records. Mr. Bratetic contested the citations and contended that the warrant was improperly executed and the citations were issued with vindictive prosecution, which brought the case before the review commission in January 2017.

The commission judge considered whether the OSHA inspector complied with a 10-day timeframe for serving a warrant and found that he did. Therefore, the judge rejected Mr. Bratetic’s argument regarding the validity of the warrant. The judge also determined that Mr. Bratetic failed to establish vindictive prosecution, which is “prosecution to deter or punish the exercise of a protected statutory or constitutional right.”

“Respondent did exercise two very important rights in this case: his right to contest the Citation, and his right to request a warrant,” the judge said in his ruling. “The problem, however, is Respondent did not (or could not) exercise those rights until the Second Inspection. Indeed, the Second Inspection could not be the result of his decision to contest the Citation from the First Inspection, because he had not received that Citation yet.”

In his final order, the judge affirmed a serious violation and related $2,800 fine regarding failure to use fall protection equipment, saying the potential for tripping did not provide a greater hazard than already existed on the site and that in any case, Mr. Bratetic did not apply for a variance. The judge vacated a second violation issued during the first inspection regarding proper training, finding that the inspectors and OSHA failed to prove Mr. Bratetic did not provide adequate fall protection training.

The judge affirmed two serious violations and $4,000 in fines resulting from the second inspection related to improper training on and use of powered industrial trucks because employees used a forklift to lift each other to an elevated surface on the worksite. The judge also affirmed a serious violation and $2,000 fine related to lack of guard rails and fall protection at a height above 6 feet.

The judge vacated three violations related to scaffolding construction, guard rails and training, saying the agency either failed to prove the violations or the violations were duplicative.

Representatives of Elite Builders Inc. were not immediately available to comment.